Indemnity act and Mahatma Gandhi

[Prof. Dr. Yogendra Yadav]

Prof. Dr. Yogendra Yadav

Senior Gandhian Scholar, Professor, Editor and Linguist

Gandhi International Study and Research Institute, Jalgaon, Maharashtra, India

Contact No. – 09404955338, 09415777229

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Indemnity act and Mahatma Gandhi

Now remains the question of “indemnity”. Indemnity means the immunity of officers against civil or criminal proceedings for their actions. The Viceroy has said that they intend to introduce in the present session a Bill granting such immunity and there has been a good deal of protest against this. Even telegrams have been sent to the Viceroy on behalf of certain public bodies to say that such an Indemnity Bill ought not to be passed before the Committee’s report is published. I wish to place before readers my understanding of a law of this nature. The officers should not be held personally responsible for their actions under Martial Law. Even apart from Martial Law, officers are not liable to criminal or civil proceedings for any orders passed by them under the ordinary law, even if those orders are subsequently proved to be wrong or to have been passed out of prejudice or malice. The Government may, however, hold a departmental inquiry and can dismiss them, but they cannot be made answerable in any court of law. Acts under Martial Law are always protected through special legislation and everyone accepts this as a general principle.

That is why I say that we need have no fear if the Government wants to pass an Indemnity Act right now. We should allow the Bill to be passed if its provisions are unobjectionable. We do not want to send to the gallows the officers who gave or issued wrong orders and the judges who wrongly passed death sentences. Even if we ask for such power, we shall not get it. They will remain immune against such punishment. Every State needs such protection. Even when we come to enjoy swaraj, the State will retain this power. The officers will then too commit grave mistakes and the public will get excited; even under swaraj the people will resort to violence; if the spirit of pure Satyagraha has not come to prevail in India by then, there will be Martial Law and firing, followed by appointment of Commissions. Even under swaraj Indemnity Acts will be passed to protect the authority of the State. But then, as now, the actual provisions will need to be looked into. About this Bill, too, I would therefore say that, rather than complain that it has been brought in prematurely; we had better have a careful look at its provisions. For instance, we may not object to a clause providing that the officers who issued orders for firing would not be liable to prosecution for murder or that they could not be sued for damages. But we should strenuously oppose any provision making such officers immune against departmental inquiry or dismissal for misconduct or incompetence.

We should also oppose a provision to the effect that all sentences and orders, whether just or unjust, would remain and could not be modified. These are only some illustrations. Thus, my humble view is that we are only justified in opposing undesirable provisions in the Bill.  Col. O’Brien returned post-haste to Gujranwala. He seems to have telephoned to Lahore for a blank card. Examined by Sir Chimanlal Setalvad as to what powers he had, he said, “I had a conversation with the Chief Secretary on the telephone on the 15th, and said to him, I might probably have to take certain actions and I hope that they will be legalized afterwards, if done in good faith.” “But that was before the declaration of Martial Law?” asked Sir Chimanlal Setalvad. Col. O’Brien replied, “Yes.” Sir Chimanlal further asked, “You telephoned to him that you would have to take certain actions, and you wished that your actions should be legalized, if done in good faith, and he issued a blank cheque?” The answer was, “Yes. He said, ‘Use your common sense. It would be all right’.” If this be the genesis of the Indemnity Act, we have no hesitation in saying that it was discreditable. What action was taken by this officer “in good faith” will be seen presently.

 

Reference:

1.  Navajivan, 14-9-1919